IN THE CASE OF

UNITED STATES, Appellee

V.

Kurt C. HUHN, Sergeant

U.S. Army, Appellant

No. 01-0032

Crim. App. No. 9900210

United States Court of Appeals for the Armed Forces

Argued March 28, 2001

Decided May 2, 2001

Counsel

For Appellant: Captain Steven P. Haight (argued); Colonel Adele

H. Odegard, Lieutenant Colonel David A. Mayfield, and Major

Jonathan F. Potter (on brief).

For Appellee: Captain Jennifer A. Parker (argued); Colonel David

L. Hayden, Lieutenant Colonel Edith M. Rob, and Major Anthony

P. Nicastro (on brief).

Military Judge: Patrick J. Parrish

This opinion is subject to editorial correction before publication.
United States v. Huhn, No. 01-0032/AR

2

Per Curiam:

A military judge sitting as a general court-martial

convicted appellant, pursuant to his pleas, of conspiracy to

commit larceny, larceny (5 specifications), and forgery, in

violation of Articles 81, l21, and 123, Uniform Code of Military

Justice, 10 USC §§ 881, 921, and 923, respectively. The military

judge sentenced appellant to a bad-conduct discharge, confinement

for 3 years, total forfeitures, and reduction to the lowest

enlisted grade. Pursuant to a pretrial agreement, the convening

authority reduced the confinement to 18 months and waived the

total forfeitures for 6 months.

Before the Court of Criminal Appeals and this Court,

appellant asserted that his guilty plea to Specification 4 of

Charge II was improvident, because he pleaded guilty to

fraudulently canceling a debt, which is not a proper subject of

larceny. See United States v. Mervine, 26 MJ 482, 483-84 (CMA

1988). The court below modified the specification and affirmed a

finding of guilty of larceny of the property appellant obtained

in exchange for the debt. See United States v. Epps, 25 MJ 319,

323 (CMA 1987). The court below reassessed and affirmed the

approved sentence under the guidelines in United States v. Sales,

22 MJ 305 (CMA 1986).

In its brief and in oral argument, the Government conceded

that Specification 4 of Charge II is multiplicious with

Specification 5 of Charge II, which alleges larceny of the same

property. We accept the Government’s concession. Accordingly,

we will set aside appellant’s conviction of Specification 4 of

Charge II, making it unnecessary to decide if appellant’s guilty
United States v. Huhn, No. 01-0032/AR

3

plea to that specification was improvident under Mervine or if

the court below erred by modifying it.

Based on the entire record, we conclude that any error was

harmless with respect to the sentence. In a stipulation of fact,

appellant admitted conspiring with his wife, an employee of the

Army and Air Force Exchange System (AAFES), to steal $10,000 in

cash and property from AAFES. The conduct to which appellant

pleaded guilty in the five larceny specifications and one forgery

specification was in furtherance of that conspiracy. Our action

setting aside appellant’s conviction of Specification 4 of Charge

II does not change what appellant admitted during the plea

inquiry. It also does not significantly change the maximum

punishment, reducing the maximum confinement from 301⁄2 to 251⁄2

years. See paras. 46e(1) and 48e, Part IV, Manual for CourtsMartial, United States (1998 ed.). The military judge sentenced

appellant to approximately one-tenth of the maximum imposable

confinement, and the convening authority cut the adjudged

confinement in half. Under the circumstances, we are confident

that appellant’s conviction of Specification 4 of Charge II did

not have a “substantial influence” on the approved sentence. See

Kotteakos v. United States, 328 U.S. 750, 765 (1946).

The decision of the United States Army Court of Criminal

Appeals is reversed with respect to Specification 4 of Charge II.

The finding of guilty of Specification 4 of Charge II is set

aside, and that specification is dismissed. In all other

respects, the decision of the United States Army Court of

Criminal Appeals is affirmed.